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C05TA RICA- Panama Arbitration 



MEMORANDUM 



ON 



UTI POSSIDETIS 



BY 



JOHN BAS5LTT MOORL 



Haniikon Fish Professor of International Law and Diplomacy, Columbia University, 

New York: Member of the Permanent Court of Arbitration of the Hague; 

Member of the Institute of International Law: Author of a 

History and Digest of International Arbitrations, 

of a Digest of International Law, etc. 



1913. 

The Commonwealth Co., Printers, 

RossLYN, Va., U. S. a. 



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UTI POSSIDETIS 



CONTENTS. 

I. Origin of the Term Uti Possidetis. 

11. Meaning in International Law. 

nj. Application of Principle to International Bound- 
aries. 

IV. The Principle of Uti Possidetis in Latin- 
America. 

V. Its Application in Spanish- America. 

1. Origin of Spanish- American States. 

2. Absence of Definite Boundaries. 

3. Uti Possidetis of the Date of Independence. 

4. The "Uti Possidetis Juris of 1810." 

VI. Question Between Costa Rica and Panama. 



UTI POSSIDETIS 



UTI POSSIDETIS. 



In the discussion of the pending question, much 
prominence has at times been given to the subject of 
Uti possidetis. Especially is this the case with the 
Arbitration before the President of France, in which 
the representatives of Colombia (predecessor of Pan- 
ama) endowed the phrase with an importance alto- 
gether factitious, making it, indeed, in the form of 
the Uti possidetis juris, the very foundation of their 
argument. This was all the more remarkable, because 
the words Uti possidetis, as we shall hereafter more 
fully show, nowhere occur in the treaties between 
the two countries. Nevertheless, the use which has 
been made of the phrase renders it necessary to pre- 
sent the matter in its various aspects. 

I. Origin of the Term Uti Possidetis. 

The term Uti possidetis is derived from the Roman 
Law, in which it designated an interdict of the Praetor, 
by which the disturbance of the existing state of pos- 
session of immovables, as between two individuals, 
was forbidden. As to the precise origin of the pro- 
cess, which lay outside the domain of the regular 
legis actiones, writers are not agreed. They also dif- 
fer as to whether protection of the better right or 
prevention of a breach of the peace was the primary 
ground of the magistrate's intervention. Niebuhr, 
whose view has been widely accepted, finds the origin 
of the procedure in the measures resorted to for pro- 
tecting the occupants of public lands, who, although 



,6 ^lEMORANDUAI 

they could not show an original title and therefore 
could not maintain an action founded on ownership 
received in their occupancy the recognition and sanc- 
tion of the State.^ To the possessor there was awarded, 
on the strength of his possession, the right to be free 
from disturbance by his adversary. To this extent the 
interdict served, in effect, in place of a regular title. 
In course of time, however, the interdict came to be 
used as an ancillary process, for the purpose of decid- 
ing which of the parties, as possessor, should have 
the advantage of standing on the defensive in a litiga- 
tion to determine ownership. The formula employed 
by the Praetor was: Uti eas aedes, quihus de agitur, 
nee vi nee clam nee precario alter ah altero possidetis, 
quominiis ita possideatis, vim fieri veto. 

"As you possess the house in question, the 
one not having obtained it bj'' force, clandestine- 
ly, or by permission from the other, I forbid 
force to be used to the end that you may not 
continue so to possess it." 

Or, as translated by an eminent authority: 

"Whichever party has possession of the 
house in question, without violence, clandestinity 
or permission in respect of the adversary, the 
violent disturbance of his possession I pro- 
hibit."^ 

The right of the possessor was not affected if his 
possession was begim by violence, clandestinely or 
by permission as regards any other person than the 

' Muirhead, Historical Introduction to the Private Law of Rome, 
2nd ed., 1899, p. 206. 

' Poste, Gaii Institutionum, ed. 1871, p. 505. 



UTI POSSIDETIS 7 

adversary; and, as to the latter, there was simply a 
prohibition to disturb the status quo, even the ques- 
tion as to which of the parties was in possession and 
which was forbidden to interfere being left open.^ 

"In claiming/' says Sohm, ''an interdict, the juris- 
tic possessor claims, at the same time, a declaration 
recognizing his juristic possession, discontinuance of 
the disturbance, and damages for the disturbance which 
has already taken place. No one, however, is deemed 
a juristic possessor for purposes of this interdict, un- 
less his juristic possession was acquired nee vi nee 
clam nee precario ah adversaria. A person who has 
acquired juristic possession from his adversary in 
the suit either vi (i. e. by force), or clam (i. e. clandes- 
tinely, anticipating the opposition of his adversary 
and secretly evading it), or precario (i. e. on terms 
of revocation at will, no binding transaction being 
concluded with the grantor), is not held to have juristic 
possession for purposes of the possessory suit, the 
juristic possession being deemed, on the contrary, to 
vest in the adversary from whom the thing was ac- 
quired vi, clam, or precario."* 

''The interdicts Uti possidetis and Utruhi are," 
says Moyle, speaking of the time of Justinian, "for 
retaining possession, and are employed when two 
parties claim ownership in anything, in order to de- 
termine which shall be defendant and which plaintiff; 
* * * Where the dispute relates to the possession 
of land or buildings, the interdict called Uti possidetis 
is employed; * * * in Uti possidetis the party 
in possession at the issue of the interdict was the win- 

*Muirhead, p. 347. 

*1 Sohm, Institutes of Roman Law (1910), p. 310. 



8 MEMORANDUM 

ner, provided he had not obtained that possession from 
his adversary by force, or clandestinely, or by per- 
mission; whether he had obtained it from some one 
else in any of these modes was immaterial." (Moyle, 
Imperatoris lustiniani Institutionmn, 1883, pp. 201- 
204.) 

The substance of the decree is embraced in the words 
Uti possidetis, ita possideatis : ''As you possess, so 
may you possess." The interdict was briefly desig- 
nated as Uti possidetis. 

II. Meaning in International Law. 

From the Roman law, the phrase Uti possidetis was 
transferred to the works on International Law, but 
without any of the technical significance and limita- 
tions which inhered in the Roman interdict. For this 
reason Bluntschli has criticised the use of the phrase 
by writers on International Law as inaccurate, since 
it denotes, in International Law, (1) not possession 
under private law but territorial sovereignty, and (2) 
not merely the recognition of possession but a defini- 
tive status.*^ The distinctions pointed out by the learned 
German publicist are universally admitted to be sound, 
but his criticism of the use of the phrase in Interna- 
tional Law is not necessarily to be accepted, since it 
literally and appropriately conveys in this relation the 
precise meaning which it is intended to give. In In- 
ternational Law, the phrase no longer referred to a 
judicial or quasi-judicial procedure, resulting in the 
interdict of a supreme legal authority. Its fundamental 
object, in private law, of preventing and invalidating 
the use of force, no longer existed ; for, by International 
Law, the use of force was lawful and the right of conquest 

' Bluntschli, Le Droit International Codifie, ed. of 1895, Art. 715. 



UTI POSSIDETIS 9 

was recognized. Its entire meaning and application in 
International Law were aptly summed up and ex- 
pressed in the words Uti possidetis, ita possideatis, 
**As you possess, so may you possess." 

But, for the very reason that, in International Law, 
which lacked a supreme political authority and a su- 
preme judicial jurisdiction, the use of force was law- 
ful and the right of conquest was recognized, the prin- 
ciple of Uti possidetis, in the sense indicated, was a 
rule of peace; since it furnished a date from which 
rights were to be reckoned, without recurring to prior 
controversies and hazarding the consequences of their 
renewal. 

''The accomplished fact," declares Rivier, "has, in 
the life of nations and in the law of nations, a capital 
and preponderant importance; it is the generator of 
right. In a stronger sense than i^ private law, we may 
apply here the principle expressed by Paul in these 
terms: 'Whoever the possessor may be, by this fact, 
because he is the possessor, he has more right than 
he who does not possess.' (Law II, Digest, Uti possi- 
detis, 43, 17.) Says B^mkershoek : 'In all public causes 
the principle prevails: Uti possidetis, ita possideatis.' 
(Quaestionum juris public! [1737], Lib. II, Cap. Ill, 
p. 206.) "« 

Again : 

"The basis of the negotiations [for peace] is 
given either by the uti possidetis, or statu quo 
post helium, or by the statu quo ante helium. 
The latter basis will not be presumed, the war 
having suppressed the former state of things 
and created a new state of things. We know the 

° Rivier, Principes du Droit des Gens, I, 55. 



10 MEMORANDUAl 

important role which belongs in the law of na- 
tions to the accomplished fact and to posses- 
sion. ' '^ 

**The treaty of peace," says Wheaton, ''leaves 
everything in the state in which it found it, unless there 
be some express stipulation to the contrary. The exist- 
ing state of possession is maintained, except so far as 
altered by the terms of the treaty. If nothing be said 
about the conquered country or places, they remain 
with the conqueror, and his title cannot afterwards be 
called in question. During the continuance of the war, 
the conqueror in possession has only a usufructuary 
right, and the latent title of the former sovereign con- 
tinues, until the treaty of peace, by its silent operation, 
or express provisions, extinguishes his title forever. 
* * * The uti possidetis is the basis of every treaty 
of peace, unless the contrary be expressly stipulated."® 

"As between the belligerent powers themselves," 
says a recent writer, "it is held that the conclusion 
of peace legalizes the state of possession existing at 
the moment, unless special stipulations to the contrary 
are contained in the treaty. This is called the prin- 
ciple of Uti possidetis, and it is of very wide and far- 
reaching application. * * * Arrangements that 
seem at first sight to be pedantic in their minuteness 
are often necessary to carry out the intentions of the 
parties in the face of the rule that, when there are no 
express stipulations to the contrary, the principle of 
uti possidetis prevails."^ 

'Id. II., 450. 

*Wheaton's Elements, Lawrence's ed. 1863, pp. 878-882. 886. 

"Lawrence. Principles of Int. Law (4th ed. 1010), pp. 571, 572. vSee, 
to the same effect, Walker, Science of Int. Law, .372; Ferguson's Manual 
of Int. Law. IT.. 5.59; Halleck, Int. Law, Raker's cd. (1908). I., .345; II., 
537; Oppenheim, Int. Law (1906), II., 287. 



UTI POSSIDETIS II 

Finally, we may quote the words of a distinguished 
Argentine publicist, who in turn cites an eminent pub- 
licist of Chile, as follows: 

''The peace, when the treaty contains no con- 
trary stipulation, either does not change the 
situation in which things are found at the mo- 
ment of its conclusion, or re-establishes them 
in the same state as before the war. In the first 
case, if nothing is said on the subject, the coun- 
tries and places occupied and conquered remain 
in the power of the party who occupies them, by 
the application of the rule uti possidetis. * * * 
According to Bello, 'the clause which replaces 
things in the state anterior to the war, in statu 
quo ante helium, has relation solely to terri- 
torial properties and is limited to changes which 
the war has produced in their natural posses- 
• sion; the basis of actual possession, uti possi- 
detis, relates on the contrary to the epoch indi- 
cated in the treaty of peace, or, in default of 
any, to the date of the treaty itself."^'' 

m. Application of Peinciple to InternationaIi 
Boundaries. 

Not only in cases where, as the result of war, pos- 
session of territory has been obtained by force, but also 
in cases where, as the result of discovery, exploration 
and settlement, possession has been acquired by occu- 
pation, the principle of uti possidetis, as understood 
in International Law, has played an important and 
often a decisive part. This has been so of necessity. 
Within the past four hundred years vast territories, 
imperial in extent, have been added to the domain of 
civilization. In the process of their absorption, the colo- 
nizing powers of Europe entered into active competition. 

"Calvo, Droit Int. (ed. 1896), §3150, V. 380. 



12 MEAIORANDUAI 

Settlements were formed and titles were established; 
but, even where the titles were acknowledged, the 
boundaries as between adjacent proprietors remained 
to be determined. The task of delimitation was diffi- 
cult and complicated. Not only was the process of 
occupation gradual, but conflicting rules were set up 
as to the extent to which the occupation of a certain 
place gave a right of possession. In the course of 
time, as effective control was established and the set- 
tlements of different proprietors approached each 
other, the question of boundaries, perhaps originally 
of slight practical importance, became acute. On what 
principle was the difficulty to be solved? In the last- 
analysis the contestants often were obliged, in the 
midst of conflicting and irreconcilable claims of right, 
to accept as the only possible solution the principle 
of actual possession — the uti possidetis. 

In saying this, however, it is by no means intended 
to suggest that, in adopting the principle of uti possi- 
detis, the contracting parties always supposed either 
that they had found a perfect solvent of their diffi- 
culties or that they had excluded from consideration 
titles founded on legal documents or dispensed with 
the necessity of recurring to legal principles. Pos- 
session itself was often controverted both in the actual 
and the legal sense. Facts alleged on one side were 
denied on the other, and, even had they been admitted, 
different views were entertained as to their effects, 
especially as to the extent to which possession could 
properly be said to have been acquired. For example. 
Great Britain, in the controversies leading up to the 
Seven Years' "War, contended that she had a right, 
founded on the discovery and possession of certain por- 



UTI POSSIDETIS 13 

tions of the Atlantic Coast, to extend her sovereignty 
by given latitudes to the Pacific, i. e., from sea to sea. 
This claim was opposed by France and Spain, and was 
abandoned by Great Britain in the treaty of 1763, which 
established the Mississippi as the western boundary 
of her possessions. The United States, on the other 
hand, in the discussions with Spain as to boundaries, 
in 1805, laid down the principle that when a nation 
''takes possession of any extensive seacoast, that pos- 
session is understood as extending into the interior of 
the country, to the sources of the rivers emptying 
within that coast, to all their branches and the country 
they cover, and to give it a right, in exclusion of all 
other nations, to the same."^^ Referring to this rule, 
one of the most eminent of recent publicists suggests 
that it perhaps may be qualified by the "tacit reserva- 
tion" that "the extent of coast must bear some rea- 
sonable proportion to the territory which is claimed in 
virtue of its possession. "^^ 

An examination of boundary settlements will further 
show that, in its practical application to such settle- 
ments, the principle of uti possidetis has also been 
employed in an ancillary sense, as an aid to the under- 
standing and establishment of claims founded on docu- 
mentary titles rather than as a means of overriding 
them. In such cases the question may be considered 
as one compounded of law and of fact, and calling for 
an equitable solution. 

" Messrs. Monroe and Pinckney, American Plenipotentiaries, to Don 
Pedro Cevallos, Minister of State of Spain, April 20, 1805, 2 Am. State 
Papers, Foreign Relations (folio), 664. 

'^Hall, International Law, 4th ed., p. 111. 



14 MEMORANDUM 

IV. The Principle of Uti Possidetis in Latin- 
Ameeica. 

Nowhere lias the principle of Uti possidetis been 
more frequently invoked than in the adjust' lent of 
boundaries in Latin-America. This circumstance is 
to be ascribed, not to any theoretical preference for the 
principle among the peoples concerned, but to the sim- 
ple fact that the conditions there existing — conditions 
growing out of the gradual exploration and settlement 
of vast regions previously unknown — required its in- 
troduction as the only practical basis of delimitation. 
''Frequent conventions," says an eminent Chilean pub- 
licist, ''were concluded on the subject of boundaries. 
But, whether or not the boundary lines thus established 
were drawn on the authority of the uti possidetis of 
1810, they were vague and sometimes conflicting, ow- 
ing to the lack of precise geographical knowledge of 
the regions affected. For this reason, all the states 
of America have had boundary disputes with all of 
their neighbors. The peculiar geographical situation 
of these countries, located on the coast and with terri- 
tory extending in toward the centre of the continent 
and delimiting several states at the same time, made 
such a clash inevitable. Brazil, for example, touches 
the frontiers of all the states of South America and 
the three Guianas, with the exception of Chile. Further- 
more, the disputes extended over immense zones of 
territory, which were oftentimes claimed by two or 
more States at one and the same time. It may be said 
that a very considerable part of the diplomatic his- 
tory of Latin-America reduces itself to an account 
of the struggle over boundaries. For this reason, and 



UTI POSSIDETIS 15 

because of their great ]3olitical and economic signifi- 
cance, these contests occupy a place of capital impor- 
tance in that history. They have given rise to armed 
invasions or to occupations of the tracts in litigation, 
by one of the interested parties and have, on more than 
one occasion, led to war. They have, as well, created 
interesting new problems of International Law: e. g., 
the rights and duties of the interested states in the 
territory in dispute, during the process of the contest; 
the value of bona fide acts of occupation in it; the 
responsibility of the States for acts of civilized per- 
sons or native tribes committed in the contested 
zones. "^^ 

It is a matter of common knowledge that, after the 
first discoveries of Columbus were made known in Eu- 
rope, the Pope, Alexander VI., by a Bull issued on May 
4, 1493, declared that all lands discovered and to be 
discovered "to the west and south" of a line drawn, 
from the North to the South Pole, 100 leagues ''west 
and south" of the Azores and Cape Verde Islands, 
and not in the actual possession of any Christian 
power, should belong exclusively to Spain.^^ This line 
proving to be unacceptable to the Portuguese Govern- 
ment, it was modified by the treaty of Tordesillas of 
June 7, 1494, by which a dividing line between the lands 
discovered or to be discovered by Spain and Portugal 
was drawn at 370 leagues west of the Cape Verde Is- 
lands. The Papal Bull, as modified by the treaty of 
Tordesillas, is often referred to by writers as having 
divided the "New "World" between Spain and Por- 
tugal; but a moment's consideration will convince us 

'* Alvarez, American Problems in International Law, 23-24. 
'* Dumont, Corps Diplomatique, vol. ITT., part 2, pp. 302-303. 



l6 MEMORANDUM 

that this conception of the matter involves an ana- 
chronism. As much as fifteen years after the first dis- 
coveries of Columbus, although one may find on the 
map a segment of what we now know as the continent 
of South America, he will also find to the north, l>4ng 
between Europe and Asia, a vast stretch of ocean, 
obstructed only by a few islands, ^^ The New World, 
as we now know it, was still imknown, so that, however 
broad the terms of the Papal Bull and the treaty of 
Tordesillas may be, there was no actual concrete in- 
tention of dividing between Spain and Portugal the 
continents of Nortli and South America. Nor was 
this all. When in later years the American continents 
were revealed, and Spain and Portugal had prosecuted 
their discoveries not only in the Western Hemisphere 
but also in the Eastern, it was found to be impossible 
to apply the line of demarcation of the fifteenth cen- 
tury. Owing to the defective state of geographical 
science, no agreement could be reached even as to the 
length of a degree on a great circle, the extent of a 
league was undetermined, and no man could tell where 
the line, even if it were to be adhered to, should ac- 
tually run. Moreover, each country had, in its explo- 
rations and settlements, overstepped what the other 
conceived to ])e its proper sphere, so that any attempt 
to run the line would necessarily involve sacrifices. 
If it were fixed at one place, Portugal must give up a 
part of Brazil ; if it w^ere fixed at another, Spain must 
give up the Philippines. 

As the only way out of their difficulty, the two 
Crowns decided to renounce their ancient disputes, and 

" See Ruj'sch's Nova et univcrsal'wr Orbis cogniti tabula. Romae 1508, 
in Nordenskiold's Facsimile- Atlas, 1889, p. 63 et seq., map xxxii. 



UTI POSSIDETIS 17 

** agreed in consigning to oblivion the rival claims grow- 
ing out of the demarcation line, and began all over 
again, declaring Alexander's Bull and the treaty of 
Tordesillas and others based thereon all null and 
void."i« 

This conclusion, which was merely the necessary 
summary of existing conditions, was formally an- 
nounced in the treaty between Spain and Portugal, 
signed at Madrid, January 13, 1750. In this treaty 
the contracting parties declared that they had resolved 
to put an end to past and future disputes and to forget 
and desist from all actions and rights which they might 
have had by virtue of previous treaties, agreements., 
or acts, and to observe two rules, the first of tvJiich was 
that the hest-hnoivn landmarks, such as the sources and 
courses of rivers and the most notable mountains, 
should be adopted in defining the boundaries, and the 
second, that each party should remain in possession 
of ivhat it then held, with the exception of such mutual 
cessions as should be made for purposes of convetv- 
ience, in order that the boundaries might be as little 
subject to controversy as possible. 

Owing to historical incidents which need not be here 
detailed, the divisional line, the bases of which were 
thus indicated, was not actually run, and when the 
colonies of Spain and Portugal became independent 
their common frontiers remained unmarked; but the 
principle of uti possidetis was preserved. Thus by 
the treaty of limits between Brazil and XTruguay, con- 
cluded at Rio de Janeiro, October 12, 1851, it was de- 
clared (Art. II.) that the contracting parties recognized 

^'The Demarcation Line of Alexander VI., Yale Review, vol. I., p 54. 



i8 MEMORANDUM 

'*as the basis which is to regulate their limits the uti 
jjossidetis."^' By the treaty between Brazil and Peru, 
signed at Lima, October 23, 1851, it was agreed that the 
boundaries between the two countries should be ' ' regu- 
lated on the principle of uti possidetis." So, in the 
treaty of limits between Brazil and Venezuela, signed 
at Caracas, November 25, 1852, it was declared (Art. 
II) that the contracting parties agreed upon and recog- 
nized '*as a basis for the determination of the frontier 
between their respective territories the uti posside- 
tis."'^^ By the convention between Brazil and Paraguay 
concluded at Eio de Janeiro, April 6, 1856, the con- 
tracting parties agreed that they would '' respect and 
reciprocally cause the present uti possidetis to be re- 
spected."^-* The same principle was recognized in the 
treaty of limits and the accompanying protocol between 
Brazil and the Argentine Confederation signed at Pa- 
ranj'i, December 14, 1857.-" These instruments are of spe- 
cial interest as showing the admixture of questions of 
fact and of law. The Brazilian plenipotentiary having 
in the protocol declared, in respect of certain debat- 
able islands in the River Uruguay, that in agreeing, 
as he had done in Art. IV of the treaty, that the two 
governments should determine the matter ''in con- 
formity with the principles of international law," he 
did so on the understanding that "there was no in- 
tention of prejudging by that clause the facts of pos- 
session on the part of either nation, * * * T\'hich, 
moreover, he considered to be well understood, because 
the law of nations also sanctions the principle of uti 

" British and Foreign State Papers, Vol. 40, p. 1151. 
" Rr. & For. State Papers, vol. 40. p. 1213. 
'" Br. & For. State Papers, vol. 46, p. 1304. 
'" Br. & For. State Papers, vol. 49, p. 1316. 



UTI POSSIDETIS 19 

possidetis as a legitimate title to territorial owner- 
ship," the Argentine plenipotentiary replied that he 
could not *' acknowledge any possession which was not 
by reason of the sovereignty wliich the Empire had 
over one of the banks and the moiety of the river. "-^ 

Finally, in the treaty between Brazil and Bolivia, 
concluded at La Paz, March 27, 1867, the contracting 
parties agreed (Art. II) '4n recognizing as a basis 
on which to determine the boundaries between their 
respective territories, the uti possidetis." 

V. Its Application in Spanish America. 

1. Origin of the Spanish- American States. 

As has been seen, the peoples of Spanish America 
became familiar with the principle of uti possidetis 
in the colonial days, when, with their neighbors of 
Portuguese nationality, they engaged in territorial dis- 
putes which their home governments sought to ad- 
just. After their emancipation, they foimd occasion 
to invoke the same principle as between themselves. 

Prior to the emancipation, Spanish America was di- 
vided into four viceroyalties : Mexico, Santa Fe (New 
Granada), Peru, and Buenos Aires; and into seven 
captaincies-general : Cuba, Porto Rico, Santo Domin- 
go, Yucatan, Guatemala, Caracas (Venezuela), and 
Chile. What an eminent Chilean publicist has termed 
the ' ' supersensitive spirit of national independence, ' '^^ 
but what might with equal justice be regarded as the 
manifestation of local- attachments inevitably result- 
ing from generations of association and confirmed 

^'Id. 1318. 

" Alvarez, American Problems in International Law, 21 



20 MEMORANDUM 

habits of political thought and action, caused these ad- 
ministrative divisions to split up into independent states. 
Colombia, as successor of the viceroyalty of Santa Fe 
(New Grenada), and Venezuela, as the successor of 
the captaincy-general of Caracas, date their movement 
of emancipation from 1810. November 27, 1811, rep- 
resentatives of five provinces of Santa Fe adopted at 
Bogota a federative compact, constituting The United 
Provinces of New Granada. In this compact, while 
declaring their wish to establish a general government 
which should exercise the powers "proper and peculiar 
to the nation, considered as one and indivisible," they 
reserved to each of the provinces "its liberty, sov- 
ereignty, and independence in all matters which do 
not concern the common weal, ' ' and particularly guar- 
anteed, not to the nation, but to ' ' each ' ' of the provinces 
"the integrity and inviolability of its territories.""^^ 
In December, 1819, a Congress of delegates of Vene- 
zuela and New Granada declared these two States to 
be united under the name of Colombia; and into this 
union Bolivar incorporated in 1822 the territories of 
Quito and Guayaquil. In 1829 Venezuela detached 
herself, while in 1830 Quito and Guayaquil formed a 
republic called Ecuador. The ancient New Granada, 
left alone, resumed its original name, which it again 
dropped in 1857 for that of Colombia.-^. The ancient 
Viceroyalty of Buenos Aires, dating its movement of 
emancipation, as also does Chile, from 1810, declared 
itself independent in 1816, under the name of the 
United Provinces of the Eio de la Plata; but the ter- 
ritory, to which it in whole or in part laid claim, came 

'' 1 Br. & For. State Papers, part 2, pp. 1009-1089. 

'* See Alvarez, Le Droit International Americain, 62-63. 



UTI POSSIDETIS 21 

sooner or later to form the four independent states 
of Argentina, Paraguay, Uruguay, and Bolivia. The 
ancient captaincy-general of Guatemala, declaring its 
independence in 1821, became in 1823 the Eepublic 
of the Centre of America, which later broke up into 
the five independent states of Guatemala, Salvador, 
Honduras, Nicaragua, and Costa Eica. Peru dates 
her independence from 1824. It is needless to say that 
the establishment of the various independent govern- 
ments which have been enumerated did not take place 
without frequent armed conflicts, into the history of 
which it is unnecessary now to enter. 

2. Absence of Definite Boxmdaries, 

When the process of emancipation was complete, 
not a single boundary line had been actually agreed 
upon and defined, much less marked. Even where at- 
tempts were made to indicate them, the indications 
were insufficient or defective, owing to the want of 
precise geographical data. The earlier laws, decrees 
and orders of the former Spanish government, home 
and colonial, were for the same reason necessarily in- 
sufficient. 

The act, formulated in 1819 and adopted in 1821, 
uniting New Granada and Venezuela as the Eepublic 
of Colombia, declared that the territory of that Ee- 
public should be that comprehended within the limits 
of the ancient captaincy-general of Venezuela and the 
viceroyalty of New Granada, but that the ''settlement 
of its precise boundaries" should be ''reserved for 
a more suitable time."^^ The constitution of Vene- 

''9 Br. & For. State Papers, 696. 



22 MEMORANDUM 

zuela, adopted in 1830, merely stated that the national 
territory comprised *'all that which, previously to the 
political changes of 1810, was denominated the cap- 
taincy-general of Venezuela."-" A similar definition, 
mutatis mutandis, was embodied in the constitution 
of New Granada of 1832.-' It was only in 1881 that a 
treaty was concluded between the two countries refer- 
ring their disputes as to boundaries to the arbitration 
of the King of Spain. 

The treaty of perpetual imion, league and confedera- 
tion l)etween Colombia and Peru, signed at Lima, July 
6, 1822, contained the following stipulation: 

''Art. IX. The demarcation of the precise 
Boundaries which are^to divide the Territories 
of the Republic of Colombia and the State of 
Peru, shall be arranged by a particular Con- 
vention as soon as the approaching Congress of 
Peru shall have authorized the Executive of that 
State to settle this point; and any differences 
which may occur on this subject shall be settled 
by conciliatory and peaceful measures, becom- 
ing brotherly and confederated Nations."-^ 

Senor Revenga, Secretary of State for the Depart- 
ment of Foreign Affairs of Colombia, in his report to 
the Congress, Jan. 2, 1826, stated that, owing to the 
vicissitudes which Peru had experienced, the settle- 
ment of the frontier on that side had been postponed, 
but that there was reason to hope that it would be 
definitively settled; and he significantly added that 
in preparing instructions for the representatives of 

"18 Br. & For. State Papers, 1119. 

"10 Td., Oil. 

"11 Br. & For. State Papers, 105. 



UTI POSSIDETIS 23 

Colombia '' particular attention" had been paid to se- 
curing '^the most convenient, clear and natural fron- 
tiers."-"-^ Finally, the two countries, by the treaty of 
Sept. 22, 1829, following a war between them, entered 
into the following stipulation : 

^ "Article V. Both parties acknowledge as the 
limits of their respective Territories those be- 
longing to the ancient Viceroyalties of New 
Granada and Peru prior to their independence, 
with such variations only as they may deem it 
convenient to agree upon ; to which end they en- 
gage to cede to each other, reciprocally, such 
small portions of Territory as may be necessary 
to fix the Boundary Line in a more natural and 
precise manner, and be better calculated to avoid 
offence and misunderstandings between the au- 
thorities and the inhabitants on the frontiers. "^^^ 

The state of Ecuador having been formed out of the 
southern part of Colombia, it accepted, as its boundary 
with the- latter country, the limits which, conformably 
to the Law of Colombia of June 25, 1824, "separated 
the provinces of the ancient Department of the Cauca 
from that of Ecuador, "^i Succeeding thus to the dis- 
pute between Colombia and Peru, Ecuador made in 
1832 with Peru the following agreement: 

"Until a convention respecting the limits of 
the two States shall have been concluded, the 
present limits shall be recognized and re- 
spected."^- 

By the Treaty of Peace, Friendship and Alliance, 
signed at Guayaquil, Jan. 25, 1860, another stipula- 

*• 13 Br. & For. State Papers, 1010-1011. 

'"16 Br. & For. State Papers, 1242, 1243. 

''Treaty of Peace, Dec. 8, 1832, 20 Br. & For. State Papers, 1206, 
1207, Art. II. 

^'Art. XTV, Treaty of Friendship, Alliance and Commerce between 
Ecuador and Peru, signed at Lima, July 12, 1832, 20 Br. & For. State 
Papers, 1311. 



24 ME M O R A X D U M 

tion on the subject of boundaries was entered into. 
Territories claimed by Peru having been pledged or ad- 
judicated to British creditors of Ecuador, the Peruvian 
negotiator produced certain documents, the chief of 
T\'hich was a Eoyal Decree of July 15, 1802, to sub- 
stantiate the rights asserted by Peru to the territories 
of Quijos and Canelos. The government of Ecuador, 
recognizing the value of the documents, declared void 
the ** adjudication," and agreed to rectify the bound- 
aries and to this end to appoint a mixed commission. 
Meanwhile, the two countries engaged to accept as 
their limits "those which arise from the uti possidetis 
acknowledged in Article V. of the Treaty of September 
22, 1829, between Colombia and Peru, and which were 
those of the ancient viceroyalties of Peru and Santa 
Fe, according to the Royal Decree of July 15, 1802," 
Ecuador reserving, however, the right to prove its title 
to Quijos and Canelos within the peremptory term of 
two years. ^^. As has been seen,^'* the ''uti possidetis" 
of the treaty of 1829 was "the limits * * * be- 
longing to the ancient viceroyalties of New Granada 
and Peru prior to their independence," the date of 
New Granada's independence being 1810 and of Peru's 
1824. By a treaty signed at Quito, August 1, 1887, the 
two countries agreed to submit the question of their 
boundary to the King of Spain, whose award has never 
been rendered. The treaty laid down no rule what- 
ever for the guidance of the arbitrator's decision. The 
controversy is currently stated to involve as to Ecuador 
two-thirds of tlie entire territory which she claims as 
her owTi. 

''50 Br. & For. State Papers, 1086, 1087. 
"Supra, p. 23. 



UTI POSSIDETIS 25 

By the Definitive Treaty of Peace and FriendsMp 
between Bolivia and Peru, signed at Arequipa, Nov. 8, 
1831, it was agreed (Art. XVI) that a commission 
should be named by the two governments "for the 
purpose of drawing up a topographical Map of their 
Frontiers and another the statistics of the Population 
located upon them, in order that, without detriment 
to the two States, such cessions may be reciprocally 
made as may be necessary for an exact and natural 
demarkation of their Boundaries; which shall be 
formed by the rivers, lakes, or mountains ; it being un- 
derstood that neither Bolivia nor Peru will refuse to 
make such transfers as may conduce to this object, on 
condition of their mutually giving such competent in- 
demnifications, or compensations, as may be satisfac- 
tory to both Parties"; and it was further agreed (Art. 
XVII) : "Until the fulfilment of the preceding Article, 
the existing Boundaries shall be recognized and re- 
spected. ' '^^ 

These stipulations were substantially repeated in 
the Treaty of Friendship and Commerce signed at Are- 
quipa, Nov. 3, 1847.^^ This treaty was, however, ap- 
proved by the Peruvian Government and Congress only 
with certain "modifications and suppressions," to 
which the Bolivian Government and Congress gave 
their consent. A new Treaty embodying these changes 
was signed at Lima, December 11, 1848. Article III 
of this treaty reads as follows: 

'° 19 Br. & For. State Papers, 1383, 1387-1388. 
"'36 Br. & For. State Papers, 1137, 1138-1139. 



26 MEMORANDUM 

"III. A commission shall be appointed by 
both Governments charged with constructing 
a topographical map of their frontiers, for the 
purpose of restoring to either State the lands 
which have become intermingled with the actual 
frontiers, reestablishing their ancient land- 
marks with the view of avoiding doubts and con- 
fusion in future, both States engaging to pre- 
serve the territory which has always belonged 
to them, and not to demand or solicit any terri- 
tory from the other either by way of transfer, 
compensation, or any other reason whatso- 
ever."^^ 

Fifteen years later, the boundary still remaining 
unadjusted, another treaty was concluded, Nov. 5, 1863, 
by which it was again agreed to appoint a Mixed Com- 
mission "to make the topographical chart of the fron- 
tiers, and to verify the demarcation according to the 
data and instructions" which should "be duly given by 
both the parties." This work was to "be taken into 
consideration for a Treaty of Limits" which should 
"be promptly concluded," and until these stipulations 
were carried out the ' * actual limits ' ' were to be " recog- 
nized and respected. "^^ Only within the past two 
years, as the result of an award of the President of 
the Argentine Republic, as arbitrator, supplemented by 
a compromise as to a part of the line awarded, has a 
conclusion been reached. 

The Ijoundary between Chile and Bolivia formed the 
subject of Treaties concluded August 10, 1866, Janu- 
ary 8, 1873, August 6, 1874, and June 21, 1875. Con- 
tested sovereignty over two geographical degrees of 
territory was involved in the discussion. No general 

" 37 Br. & For. State Papers, 794, 795. 
'*.')5 Br. & For. State Papers, 837, 841. 



UTI POSSIDETIS 27 

principles were enunciated in the treaties. The pres- 
ent possession of the parties was entered upon under 
the treaty of peace of Ancon of 1883.^^ 

By the Treaty of Peace, Friendship, Commerce and 
Navigation between the Argentine Republic and Bo- 
livia, signed at Buenos Aires, July 9, 1868, it was 
agreed that the boundary should be arranged by a 
special convention, and that, until the demarcation 
should be made, possession should "confer no right to 
territories which did not belong in the first instance to 
either nation. "^^ A modus vivendi was arranged, June 
11, 1888, by which it was agreed (1) that, within the 
Chaco, a provisional line should be observed, with the 
stipulation that Bolivia should come to an understand- 
ing with Paraguay as to boundaries; and (2) that, out- 
side the Chaco, where Bolivia borders on the Argentine 
Eepublic, neither Government was "to advance be- 
yond its actual possessions." It was understood that 
this provisional arrangement was to imply no renun- 
ciation of territorial claims. ^^ 

In the Treaty of Limits of July 15, 1852, the Argen- 
tine Republic and Paraguay undertook to fix their 
boundaries by direct negotiation. No mention is made 
of the uti possidetis in any form; nor is any reference 
made to principles beyond the declaration that the con- 
tracting Governments, "with the view of fixing defi- 
nitely the relations between the two States, founded 
on the principle of reciprocal interest, community of 
origin, and other circumstances that naturally unite 
them," had "resolved to establish where most neces- 



"56 Br. & For. State Papers, 717-719; 65 Id., 275-276; 71 Id., 897; 
Alvarez, American Principles of International Law, 22. 
*"72 Br. & For. State Papers, 601-611. 
" 79 Br. & For. State Papers, 832-833. 



28 MEMORANDUM 

sary their territorial limits, establishing at the same 
time the bases on which commerce and navigation" 
should be "arranged between the two Republics."'*^ 
By the Treaty of Limits of February 3, 1876, they 
drew a line without declaration of principles, but sub- 
mitted to the Arbitration of the President of the United 
States, who duly rendered an award, the question of 
title to a certain portion of territory, including the 
Villa Occidental.^3 

By the Treaty of Friendship, Alliance, Commerce 
and Navigation, signed at Santiago, Nov. 20, 1826, the 
United Provinces of the Rio de la Plata and Chile 
bound themselves (Art. Ill) "to guarantee the integ- 
rity of their Territories, and to co-operate against 
whatever Foreign Power should attempt to alter, by 
force, their respective boundaries, as recognized before 
their emancipation, or, subsequently, in virtue of spe- 
cial Treaties."^-* Thirty years later, the Argentine 
Republic and Chile, by their treaty of peace, com- 
merce and navigation, concluded Aug. 30, 1855, entered 
into the following stipulation : 

"Art. XXXIX. The two contracting parties 
recognize as the limits of their respective ter- 
ritories those which they possessed as such at 
the time of their separation from the Spanish 
dominion in the year 1810; and they agree to 
adjourn the questions which have been or may 
be raised on this matter, in order to discuss them 
later in a pacific and friendly manner, without 
ever having recourse to violent(measures; and, 
in case they should not have brought about a 



"42 Br. & For. vState Papers, 1256. 
"68 Br. & For. State Papers, 97. 
'' 14 Br. & For. State Papers, 968. 



UTI POSSIDETIS 29 

complete agreement, to submit them to the ar- 
bitration of a friendly nation." 

On this basis the adjustment proceeded, with nego- 
tiation, mediation, and arbitrations, till at length the 
divisional line was established, claims of right giving 
way, as Calvo has observed, to "arrangements of de- 
limitation."^^ 

Without undertaking here to review in detail the ad- 
justments of boundary between the States of Central 
America, it suffices to say that they have adopted as 
a general basis of settlement the limits of the time 
of their independence, viewed in the light of the prin- 
ciples of international law and of considerations of 
equity and practical convenience. Thus, in the bound- 
ary convention between Guatemala and Honduras, of 
March 1, 1895, the contracting parties, after providing 
for the appointment of a mixed commission to make 
studies and surveys and propose bases of settlement, 
stipulated as follows: 

"Article VI. To take the necessary resolu- 
tions, the Contracting Governments, after the 
Mixed Commission shall have presented their 
Report, shall give their consideration to the ob- 
servations and studies of said Commission, and 
the lines marked in public documents not con- 
tradicted by others of the same nature and of 
greater force, giving to -each the value corre- 
sponding to it according to its antiquity and juri- 
dical efficacy; the extent of the territory which 
formed the ancient provinces of Guatemala and 
Honduras at the date of their independence; 
the dispositions of the Royal Ordinance of In- 
t^ndants which then ruled; and, in general, all 



Calvo, Le Droit International, ed. 1896, I. 424. 



30 MEMORANDUM 

documents, maps, plans, etc., which may lead 
to clearing up the truth, preference being given 
to those which by their nature should have 
greater force owing to their antiquity, or being 
more clear, just, or impartial, or for any other 
such good reason according to the principles of 
justice. 

''Possession shall only be considered valid so 
far as it is just, legal, and well founded, in con- 
formity with general principles of equity, and 
with the rules of justice sanctioned by the law 
of nations. "^^ 

In the Treaty of Tegucigalpa of 1894, under which 
Honduras and Nicaragua submitted their boundary 
question to the King of Spain, whose award was 
rendered in 1906, it was agreed that each of the Re- 
publics was the owner of the territory which, at the 
date of their independence from Spain, the date of 
which was reckoned as 1821, constituted, respectively, 
the Provinces of Honduras and Nicaragua. 

Costa Rica and Nicaragua adjusted their boundary 
in 1858 by direct negotiation. The validity and effect 
of this settlement formed the subject of an arbitration 
before the President the United States in 1888.-*' 

The unsettled boundary between Guatemala and 
Mexico has formed the subject of numerous conven- 
tions. In a preliminary agreement signed at New 
York, August 12, 1882, by President Barrios, of Guate- 
mala, and Mr. Romero, the Mexican Minister in the 
United States, there may be noted the following clause : 

"V. In the demarcation of the boundary line 
actual posses sion shall, as a general rule, serve 

" 87 Br. & For. State Papers, 530, 531-532. 

" Moore, International Arbitrations, II., 1945-1968. 



UTI POSSIDETIS 31 

as the basis by which to be guided ; but this shall 
not prevent said basis from being laid aside by 
both parties, by mutual consent, for the purpose 
of following natural lines, or for any other rea- 
son, and in such case the system of mutual com- 
pensations shall be adopted. Until the bound- 
ary line of demarcation be determined, each of 
the contracting parties shall respect the actual 
possession of the other. "^^ 



Referring to boundary disputes in Latin-America, 
a South American writer, heretofore quoted, has ob- 
served : 

''These contests have been terminated gener- 
ally by compromise or arbitration.- In these 
cases, the arbitral sentence has always given 
more importance to titles of occupation, pos- 
session, prescription, etc., established by the 
interested states, than to the economic condi- 
tion in which these territories would remain in 
consequence of the award. Thus, it has more 
than once occurred that these contests have 
been resuscitated, or remain only latent so that 
some day they may again ])ecome a new cause 
of conflicts. "^^ 



3. Uti Possidetis of the Date of Independence. 

In applying the principle of uti possidetis to their 
boundary settlements, the countries of Spanish Amer- 
ica, in cases in which conquest has not played a part, 
have adopted as the time of its application the date of 
their independence, — a criterion in no sense specially 

" 73 Br. & For. Stale Papers, 272, 273. 

*•' Alvarez, American Problems in Int. Law, 24. 



32 MEMORANDUM 

Spanish- American, since it is also maintained by Bra- 
zil, and is in fact the only one for which the groimds are 
apparent. But, from the review just made of actual 
international agreements and settlements, three facts 
stand clearly out: (1) That the principle was not ex- 
pressly referred to in the earlier treaties, and that it 
has not been so constantly invoked nor has its practical 
effect been by any means so important as writers and 
learned advocates have sometimes asserted; (2) that 
as to the date of its application there is a radical and 
permanent disagreement, based upon historical facts 
that cannot be altered; and (3) that it was only after 
the lapse of years, when wars had opened the way to 
claims based on violence and the spectre of conquest 
had arisen, that enough importance began to be at- 
tached to the date to cause it to be mentioned in 
treaties. As a safeguard against this peril, an attempt 
was made to establish, without regard to all the facts, 
a general principle, having the aspect of a rule of law, 
which any power seeking to establish or to enlarge its 
boundaries by force might be charged with having vio- 
lated. This attempt was, however, confined to South 
America, for the obvious reason that there was not a 
single Central American State that could claim to 
have been independent earlier than 1821. "In South 
America," says a writer heretofore quoted, "bound- 
ary controversies have been based generally on the 
theory that the right to the disputed zone is derived 
from the uti possidetis of 1810, which is vague and 
sometimes conflicting and on that account has often 
led to three countries claiming the same territory."^" 

°° Alvarez, American Problems in International Law (N. Y., 1909). 
94. The Author is counsellor to the Chilean Foreign Office. 



UTI POSSIDETIS 33 

Again, referring to the same subject, iie says : 

*'In the settlement of disputes concerning the 
delimitation of boundaries a principle of purely 
American origin is frequently involved, namely, 
the Uti Possidetis of 1810, which has been rec- 
ognized by many of the States of the New World 
in treaties, conventions, and acts. This princi- 
ple modifies, defines, and at the same time is 
influenced by the general principle of long con- 
tinued pacific possession of disputed terri- 
tory."^^ 

In the acts of the Panama Congress, before which, 
in view of the objects of the meeting, the territorial 
question was necessarily important, the phrase uti 
possidetis is not found; and this in spite of the fact 
that Colombia, which seems to have taken the lead in 
introducing it into diplomatic correspondence, distinct- 
ly proposed its adoption in the discussions leading up 
to the Congress. This fact is stated by Senor Pedro 
Gual, Secretary of State for Foreign Affairs, who, in 
his report to the Colombian Congress, April 17, 1823, 
referring to the steps taken to bring about an American 
Confederation by means of a Congress at Panama, 
specified, as one of the articles which his Government 
had proposed: 

''II. That in order to render this guarantee 

(of territories) effective, the uti possidetis of 

1810, according to the demarcation of Territory 

of each Captaincy-General or Viceroyalty, 

erected into a sovereign state, be taken as the 
rule. "^2 / 

"Id. 96. 

" 10 Br. & For. State Papers, 742-743. 



34 MEMORANDUM 

The Congress met on June 22, 1826, Colombia, Cen- 
tral America, Peru and Mexico being represented. At 
the last of the ten meetings, which was held on the 15th 
of July, there were signed (1) a "treaty of union, 
league, and perpetual confederation," (2) an agree- 
ment for the periodical reassembling of the Congress 
at Tacubaya, m Mexico, (3) a convention fixing the 
military forces to be furnished by each Republic for 
the common defense, and (4) an agreement as to the 
organization of the confederate army. The only one 
of these instruments in which boundaries are mentioned 
is the first. It appears by the protocols of the Congress 
that on the 11th of July, the draft of the treaty of 
"union" being under consideration, the plenipoten- 
tiaries of Central America, when Art. 21 was read, 
proposed to supplement it by "an additional article, 
whereby the limits of each nation, as fixed by amicable 
arrangements to be made according to circumstances, 
should be mutually guaranteed." The proposed arti- 
cle was read and agreed to, and was numbered 22. 
These two articles, forming part of the treaty of "Un- 
ion," read as follows: 

"Article 21. The contracting parties solemnly 
obligate and bind themselves to uphold and de- 
fend the integrity of their respective territories, 
earnestly opposing any attempt of colonial set- 
tlement in them without authority of and de- 
pendence upon the Governments under whose 
jurisdiction they are, and to employ to this end, 
in common, their forces and resources if nec- 
essary. 

"Article 22. The contracting parties mutually 
guarantee the integrity of their territories as 
soon as, by virtue of special conventions con- 
cluded between each other, their respective 



UTI POSSIDETIS 35 

boundaries shall have been determined ; and the 
preservation of these frontiers shall then be un- 
der the protection of the confederation. "^=^ 

As is generally known, the treaties never became 
operative, Colombia alone having approved them and 
she only partially. 

It is sometimes stated that the uti possidetis of 1810 
was proclaimed by the Congress at Lima in 1848, but 
the statement appears to be not altogether accurate. 
The assembling of this Congress, which met on Dec. 
11, 1847, on the invitation of the Peruvian Govern- 
ment, and in which Bolivia, Chile, Ecuador, New Gra- 
nada (Colombia), and Peru were represented, was due 
to the apprehension felt as to the expedition which 
General Flores was organizing in Spain to recover the 
government of Ecuador. In the instructions of the 
Peruvian Government of Nov. 30, 1847, to its plenipo- 
tentiary, we therefore find this paragraph: 

"There will be a stipulation made between 
the allied nations to preserve their territorial 
integrity : consequently, they will not permit any 
foreign power, under any pretext whatever, to 
occupy any part whatever, no matter how small 
it may be, of the territory of any of the allied 
States, who for fixing their limits will adhere 
to the rule of the uti possidetis of 1824, when 
the war of independence ended with the battle 
of Ayacucho."^^ 

December 16, 1847, the plenipotentiary of New Gra- 
nada, in accord with the representatives of Chile and 

=' Treaty of perpetual union, league, and confederation between the 
Republics of Colombia, Central America, Peru, and the United Mexican 
States, signed at Panama, July 15, 1826: First Int. Am. Conference, 
Historical Appendix, IV. 177, 184, 188. 

'* Aranda, Congresos y Conferencias Internacionales, I. 87. 



36 MEMORANDUM 

Bolivia, presented to the Congress a project of a treaty 
of Confederation. By Art. VII of this project it was 
proposed that the Confederated Republics should ''rec- 
ognize as a principle founded in perfect right, for the 
fixing of their respective limits, the uti possidetis of 
1810"; that, in order to mark such limits, when they 
were "not found in a natural and precise way" (donde 
no lo estuvieren de una manera natural y precisa), 
they should name commissioners, who, having met, and 
recognizing as far as possible the territory involved, 
should determine the dividing line of the two Repub- 
lics, taking the summits dividing the waters, the thal- 
weg of the rivers, or other natural lines, when the 
localities permitted, to which end they should have 
power to make the necessary exchanges and compensa- 
tions of territory, in the manner most conducive to the 
reciprocal convenience of the two Republics; that, if 
the line adopted by the commissioners should not be 
approved, the matter should be submitted to the ar- 
bitral decision of the Congress of Plenipotentiaries of 
the Confederated Republics; and that "the Republics 
which, having been parts of the same State at the proc- 
lamation of independence, were separated after 1810," 
should be considered as having the boundaries which 
they recognized as theirs "at the time they were con- 
stituted," without prejudice to treaty settlement.^^ 
The Plenipotentiary of Peru presented on the same 
day the bases of a similar treaty; but, in conformity 
with his instructions, he proposed (Art. VI), as the* 
boundary rule, "the uti possidetis of 1824, after th(^ 
termination of the war of independence with the battle 
of Ayacucho."^^ 

" Aranda, Congresos y Conferencias Internacionales, I. 92, 93, 96, 97. 
"Id. I. 102, 104. 



UTI POSSIDETIS 37 

Dec. 17, 1847, the Congress took up the New Grana- 
dian project. When Art. VII was reached, Peru pro- 
posed to substitute the uti possidetis of 1824 for that 
of 1810. A majority of the Plenipotentiaries expressed 
the view that the battle of Ayacucho had nothing to do 
with the discussion, and had created no new right as 
to limits; that the Spanish- American Republics could 
found their territorial rights only on the dispositions 
of the Spanish Government, in force at the time of the 
declaration of independence, and on the treaties and 
conventions celebrated since that date, and this was 
what the article provided. The Peruvian Plenipoten- 
tiary asked that the examination of the article be sus- 
pended so that he might take the instructions of his 
Government on the subject. Jan. 8, 1848, he presented 
some amended articles, among which was a draft of 
Art. VII substantially as it stood in the final treaty. 
This treaty was signed February 8. Art. VII reads 
as follows: 

''Article VII. The Confederated Republics de- 
clare their right is perfect to keep the bound- 
aries of their" territories as they existed at the 
time of the independence from Spain of the re- 
spective Viceroyalties, Captaincies-general or 
Presidencies, into which Spanish America was 
divided; and in order to mark out said bound- 
aries where they are not found in a natural and 
definite way, they agree that in such case the 
G vernments of the Republics interested shall ap- 
point commissioners, who having met and recog- 
nizing as far as may be possible the territory 
under consideration, shall determine the divid- 
ing line of the Republics, taking the summits that 
separate the waters and thalweg of the rivers, 
or other natural lines, provided the localities 



38 MEAiORAXDUAl 

permit it; to which end they shall be able to 
make the necessary and compensatory exchanges 
of land, in such manner as may best suit the re- 
ciprocal convenience of the Republics. If the 
respective Governments do not approve the de- 
marcation made by the commissioners, or if 
the latter are not able to come to an agreement 
in order to make it, the matter shall be submitted 
to the arbitral decision of one of the Confed- 
erated Republics, or of some friendly Nation, or 
of the Congress of the Plenipotentiaries. 

''The Republics which, having been parts of 
the same State at the proclamation of independ- 
ence, were separated after 1810, shall be kept 
within the boundaries which they recognized for 
themselves, without prejudice to the Treaties 
they may have celebrated or shall celebrate in 
order to vary or perfect them in conformity with 
the present article. 

"What is provided in this article shall in no 
way alter the Treaties or Conventions concern- 
ing boundaries celebrated between any of the 
Confederated Republics, nor constrain the lib- 
erty which these Republics may have to arrange 
among themselves their respective bound- 
aries. "^'^ 

It thus appears that in the final treaty the specifica- 
tion of a date when the several viceroyalties, captain- 
cies-general and presidencies became independent of 
Spain was omitted, the year 1810 being mentioned only 
in connection with States which split up after the move- 
ment for independence began. 

In the so-called Continental Treaty, signed Sept. 15, 
1856, by the Ministers of Peru, Chile, and Ecuador, it 
was agreed (Art. XIII) that none of the contracting 



Aranda, I. 109, 141. 143, 175, 176. 



UTI POSSIDETIS 39 

parties should cede or pledge any part of its territory 
or permit therein any foreign establishment, but : 

''This stipulation shall not prevent the ces- 
sions which the said States may make one to 
the other to regulate their geographical demar- 
cations or to fix natural limits to their terri- 
tories, or to determine with mutual advantage 
their boundaries. "^^ 

Guatemala, Salvador, Costa Eica and Mexico gave 
their adhesion to this treaty. Besides, on November 9, 
in the same year, a similar agreement was concluded by 
Mexico, Guatemala, Salvador, Costa Rica, New Gra- 
nada (Colombia), Venezuela and Peru, through their 
plenipotentiaries at Washington.^^ 

Nov. 14, 1864, on the invitation of the Peruvian Gov- 
ernment, a Congress, composed of representatives of 
Chile, Salvador, Venezuela, Colombia, Ecuador, Peru, 
and Bolivia, met at Lima. An envoy from the Argentine 
Republic was present, but without authority to sign 
anything. During the Congress, the conflict between 
Peru and Spain over the Chincha islands took place. 
Although various topics were embraced in the invita- 
tion, there were adopted (Jan. 23, 1865) only two con- 
ventions: one, of ''Union and Defensive Alliance"; 
the other, on the "Maintenance of Peace." The 
former contained an article (IX) like Art. XIII of 
the Continental Treaty of 1856.^*^ 

It is true that Peru has on certain occasions, one of 
which seems to have been as early as 1853, invoked 
"the principle of ^lti possidetis of 1810" against a 

"^Aranda. T. 232. 

"Alvarez, Le Droit Int. Americain, 55-57. 

"Alvarez. Le Droit Int. Americain. 58-59; Aranda. I. 42.3. 



40 MEiMORANDUM 

government that professed to maintain it. Notably 
was this the case when, in the closing days of the War 
of ' the Pacific, the representative of Peru, together 
with the representatives of certain other Spanish- 
American comitries, including those of Salvador and 
Santo Domingo but not that of Chile, signed at Cara- 
cas, on August 14, 1823, Bolivar's birthday, a protocol, 
' ' semi-officially agreed to ad referendum/' declaring the 
"duty" of upholding the integrity of territories ''in 
conformity with the principle of uti possidetis in 1810" 
and "the obligation of ignoring the so-called Right of 
Conquest. ' ' 

4. The "Uti Possidetis Juris of 1810." 

To the phrase "uti possidetis," in connection with 
the year 1810, there is occasionally added the word 
"juris." The term "uti possidetis of 1810," says a 
South American publicist, "is generally understood to 
mean the territories which the respective countries had 
the right to possess according to the Spanish adminis- 
trative divisions obtaining at that date";^^ and, reserv- 
ing always the question of date, it may be remarked 
that the insertion of the word "juris," with a view 
to emphasize the idea of the right to^possess.,"- and to 
divest the phrase "uti possidetis" of its warlike as- 
sociations, appears to require no comment. No nation, 
unless under stress of war, when the right of conquest 
arises, will admit bare possession, without regard to 
the nature of its origin or the time and circumstances 
of its duration, as a source of title. As has heretofore 
been pointed out, the principle of uti possidetis, when 

" Alvarez, American Problems of Int. Law, 22. 
"Alvarez, Le Droit Int. Americain, 65. 



UTI POSSIDETIS 41 

invoked for the amicable definition of international 
boundaries, is not understood in so severe and sum- 
mary a sense. Nor does the principle, as often seems to 
be supposed, acquire in Spanish-America a special 
juristic significance, by reason of the fact that it is in- 
voked there by nations formerly subject to the same 
sovereign. Such a condition is not peculiar to Span- 
ish-America. It equally exists in the United States, the 
boundaries of whose original States were founded on 
British grants and charters, and were eventually ad- 
justed on the strength of those and of other documents, 
imperial and colonial, and of occupation, prescription 
and mutual convenience. No one thought of denying, 
as a general principle, the force of imperial acts passed 
prior to the Independence. 

Apart from the usual and reasonable interpretation 
above defined, the phrase ''uti possidetis juris" is 
meaningless and self-contradictory. To say that the 
word "juris" excludes altogether the consideration of 
possession de facto, is to make the words self-destruc- 
tive. The judgment of ''uti possidetis" cannot be 
predicated of a situation from which the thought of 
continued physical possession is wholly excluded. Such 
a use of terms would be purely fanciful. 

It remained, however, for the eminent and ingenious 
advocates of Colombia, in the arbitration before the 
President of France, not only to ascribe to Costa Eica 
the "uti possidetis juris of 1810," but to give to it a 
construction as novel as it was fantastic. This was 
that boundaries, as between the political divisions 
which form the States of Spanish-America, could be 
determined only by imperial "laws" promulgated prior 
to 1810; that by "laws" could be understood only acts 



42 MEMORANDUM 

such as actually were, or, coming after its publication, 
were proper to be, included in the Recopilacidu de las 
Leyes de Indias; and that all capitulations, official 
commissions, reports and despatches, and all occupa- 
tions, prescriptions and other customary proofs of the 
historic evolution of right and title, must be rejected 
as incompetent and unavailing. 

To the dazzling effect of this startling and extra- 
ordinary thesis there probably may be attributed the 
award to Colombia of certain islands belonging, not 
to Costa Kica, but to Nicaragua. But, however this 
may be, it is certain that the thesis was destitute of 
other foundation than what were conceived to* be the 
necessities of Colombia's case; that the effect of its 
adoption would be to leave the countries of Spanish- 
America for the most part without any basis for the 
fixing of their limits ; and that its assumption as to the 
state or rule of Spanish law prior to the independence 
of the colonies has been in principle repudiated by 
two awards of the Government of Spain itself, ren- 
dered, respectively, in the boundary arbitration be- 
tween Colombia and Venezuela in 1891, and in the 
boundary arbitration between Honduras and Nicaragua 
in 1906. 

In the treaty between Colombia and Venezuela of 
Sept. 14, 1881, the contracting parties, having, as they 
declared, been unable *'to come to an agreement as to 
their respective rights or uti possidetis juris of 1810," 
submitted the question to the King of Spain, it being 
agreed that to Venezuela belonged "all the territory 
appertaining to the jurisdiction of the ancient Cap- 
taincy-General of Caracas by Royal Decrees of the an 
cient Sovereign down to 1810," and to Colombia "all 



UTI POSSIDETIS 43 

that territory which by similar decrees and at that 
date belonged to the Viceroyalty of Santa Fe." By 
a protocol, however, signed at Paris, February 15, 1886^ 
his powers were '^ amplified, " and he was authorized 
to fix the line ' ' as may be most in accordance with ex- 
isting documents whenever any point may arise about 
which there is not all the clearness that is desirable." 
The award of the Queen Regent of Spain, rendered 
March 16, 1891, treated of the divisional line in six 
sections, as to the second and fourth of which, the 
parties having reached an accord, no further action 
was necessary. As to the first and third, the docu- 
ments were found to be in agreement. The Royal war- 
rant of February 15, 1786, creating the command of 
Barinas, which was invoked as the basis for the deter- 
mination of the fifth section, was found to ' ' give rise to 
doubts," so that the arbitrator was obliged here to 
invoke the power conferred by the protocol of 1886. 
For convenience, the sixth section was broken into 
two parts, as to the first of which the award rested 
upon a royal warrant appointing a governor for the 
new district of Cumana in 1735; a despatch of this 
governor; a memorial addressed to the King by an- 
other governor in 1743; maps, returns of population, 
and official correspondence of the commander of the 
district; a report of the head of the Jesuit Missions 
on the Orinoco in 1749 ; a definition of the territory of 
the Lieutenancy of the Guayana, by a person who was 
also governor of Cumana, in 1761 ; a despatch of the 
same official in the same yearj^ a draft report on the 
boundary of the Guayana in 1760 ; a report of the gov- 
ernor of Caracas in 1762; maps by various Spanish 
geographers down to 1796, as well as two maps of later 



44 MEMORANDUM 

date; and the description of a journey made by order 
and at the expense of the Archbishop and Viceroy of 
Santa Fe in 1782-1783. These documents, it was de- 
clared, "clearly fix the line of frontier as far as the 
lata is concerned." As to the second part of the sixth 
section, the disputants invoked but differently inter- 
preted a Royal Warrant of May 5, 1768. The arbitra- 
tor pronounced its terms "not so clear and precise as 
they ought to be," and again invoked the protocol of 
1886, basing the award in this part on the following 
grounds : 

1. That Venezuela was "in bona fide possession of 
the territories to the west of the Orinoco, Casiquiare, 
Negro Rivers, which form the boundaries assigned on 
this side to the Province of Guayana, in the above- 
mentioned Royal Warrant of 1768." 

2. That "Venezuelan interests are largely repre- 
sented in the aforesaid territories, encouraged by the 
confident belief that they were established in the do- 
minions of the United States of Venezuela." 

3. That "the Rivers Atabapo and Negro trace a 
clear, definite and natural frontier, with only one break 
of a few kilometres from Yavita to Pimichin, thus re- 
specting the boundaries of these two villages." 

In the award rendered by the King of Spain, Dec. 23, 
1906, on the boundary question between Honduras and 
Nicaragua, the arbitrator held that "the Spanish prov- 
inces of Honduras and Nicaragua were formed by 
historic evolution," until, by virtue of the Royal Ordi- 
nance as to Intendants of Provinces of 1786, they were 
constituted as two distinct Intendencias of the Cap- 
taincy-General of Guatemala; that "the time of their 



UTI POSSIDETIS 45 

emancipation from Spain" was "1821"; that a Royal 
Cedula affecting boundaries, though issued prior to 
the independence, might be treated as not having ef- 
fected any change where it was tacitly allowed to be 
or/ was in fact locally disregarded; that the exercise 
of political jurisdiction in a positive and permanent 
manner must be taken into account in fixing the limits ; 
that temporal divisions should conform to the spiritual, 
and that the exercise of ecclesiastical jurisdiction 
should be treated as proof of the extent of temporal 
jurisdiction; that (as the treaty itself indicated) nat- 
ural boundaries should be preferred to artificial ones ; 
that the appointments of colonial governors, the com- 
munications of local colonial authorities to the home 
government, and even the published writings of such 
authorities, were to be accepted as sources of authority 
for the demarcation of the boundaries ; that diplomatic 
documents of the independent governments concerned, 
and even the statements of other interested govern- 
ments, were likewise to be received; that the descrip- 
tions in maps and geographies and books of travel, 
Spanish, English, French, German and American 
(North and South), examples of which were cited from 
1571 to 1901, were also to be consulted. On the proofs 
thus assembled, the divisional line was awarded. 

VI. Question Between Costa Rica and Panama. 

In the treaty of Union, League and Confederation 
between the United Provinces of the Centre of Ameri- 
ca and the Republic of Colombia, predecessors of 
Costa Rica and Panama, signed at Bogota, March 15, 
1825, to which the present controversy runs back, it 
was agreed : 



46 MEMORANDUM 

"Article V. The two Contracting Parties mu- 
tually guarantee the intpcrrity of their respec- 
tive territories against the attempts and incur- 
sions of the subjects of the King of Spain and 
his adherents, on the footing on which they ex- 
isted before the present war of independence.'* 

"Article VIL The United Provinces of the 
Centre of America and the Republic of Colombia 
formally obligate and bind themselves to \ re- 
spect their boundaries as they exist at present; 
reserving to themselves to settle in a friendly 
manner, by means of a special convention, the 
demarcation of the divisional line between the 
two States, so soon as circumstances permit, or 
whenever one of the Parties shall manifest to the 
other its disposition to enter into such negotia- 
tions." 

It was further stipulated (Art. VIII) that, in order 
to facilitate this "boundary negotiation," the parties 
should be at liberty to send commissioners to "visit all 
the points and places on the frontiers and prepare such 
charts as they may deem convenient and necessary in 
order to establish the dividing line." 

Meanwhile, the two Governments were to co-operate 
in preventing "the colonizations of unauthorized ad- 
ventures in that part of the coasts of Mosquitos in- 
cluded between Cape Gracias a Dios and the River 
Chagres, * * * without having first obtained the 
permission of the Government to which it belongs Id 
dominion and property." 

Upon the strength of this treaty, by which the con- 
tracting parties, while reserving the definitive settle- 
ment of their divisional line for a special convention, 
merely bound themselves "to respect their boundaries 
as they exist at present," the ardent and unshrinking- 



UTI POSSIDETIS 47 

advocates of Colombia, in the arbitration before t]v^ 
President of France, did not hesitate to affirm that the 
Central-American Eepublic not only had accepted the 
''Uti possidetis juris of 1810," but had accepted it in 
the fanciful sense in which they themselves in 1900 
sought to interpret it. The simple and obvious facts 
speak for themselves. 

Colombia dates her independence from 1810, when 
the movement for emancipation began in that quarter. 
The Constitution of the Republic of Colombia, adopted 
at Cucuta, Aug. 30, 1821, declared (Title II, Section 1, 
Art. VI) that the territory of the Republic was ''the 
same which was formerly comprehended in the Ancient 
Viceroyalty of New Granada and the Captaincy-Gen- 
eral of Venezuela." Precisely the same clause, with 
the same numbering, appears in the Constitution of 
April 29, 1830. The Constitution of New Granada of 
April 20, 1843, Venezuela and Ecuador having become 
independent States, declared (Art. VII) : 

"The limits of the territory of the Republic 
are the same which in the year 1810 divided the 
territory of the Viceroyalty of New Granada 
from that of the Captaincies-General of Vene- 
zuela and Guatemala, and from that of the Portu- 
guese possessions in Brazil; and * * * 
from the Republic of Ecuador." 

This clause is repeated (Art. II) in the Constitution 
of New Granada of May 22, 1858, and, the name of 
Colombia having been resumed, in the Constitution 
of the United States of Colombia of May 8, 1863. 

Central American independence dates from Sept. 15, 
1821, when it was declared at the town hall in Guate- 
mala City. The Constitution of the Republic of the 



48 MEMORANDUM 

Centre of America of Nov. 22, 1824, embracing the five 
States of Costa Rica, Nicaragua, Honduras, Salvador, 
and Guatemala, declared (Tit. I, Sec. II, Art. V) sim- 
ply that the territory of the Republic was "that which 
formerly composed the ancient Kingdom of Guate- 
mala," excepting, for the time being, the province of 
Chiapas. 

In the Constitution of ''The State of Costa Rica," 
of January 21, 1847, there may be found (Chap. II, 
Section I, Art. XXV) a somewhat detailed definition 
of the boundaries on all sides, embracing, on the North, 
th? Atlantic Ocean from the mouth of the San Juan 
river to the Escudo de Veragua, and, "on the East, 
from the latter point to the River Chiriqui." In the 
next year there was formed the Republic of Costa 
Rica, and in its constitution it was declared (Chap. I, 
Sec. 4, Art. VII) that "the limits of the territory of 
the Republic are those of the Uti possidetis of 1826." 
The Constitution of Dec. 7, 1871, (Tit. I, Art. Ill) de- 
clares : 

"The territory of the Republic * * * is 
hounded * * * on the southeast, by Colom- 
bia, in regard to which the uti possidetis of 1826 
shall be observed."*'^ 

The year 1826 is the date of the exchange of the rati- 
fications of the treaty of 1825 with Colombia, the ex- 
change having been made at Guatemala City, June 16, 
1826.«^ 

In the exchange of the ratifications, two changes 
were on motion of Central America incorporated into 



"' Rodriguez, American Constitutions, I. 326. 

" Coleccion de los Tratados Internacionales celebrados por la Re- 
p'blica de Costa Rica, II. 10. 



UTI POSSIDETIS 49 

the treaty. One of these referred to the powers of 
the proposed General Assembly of American States. 
The other related to Art. V, above quoted. The Cen- 
tral American Congress, in approving the treaty, 
amended that Article by inserting, before the word ' ' ex- 
isted," the word ''naturally" (naturalmente) , and 
transposing the last clause, so as to make the clause 
read : 

"Article V. The two Contracting Parties mu- 
tually guarantee the integrity of their respec- 
tive territories on the footing on which they nat- 
urally existed before the present war of inde- 
pendence, against all attempts and incursions of 
the subjects of the King of Spain and his adher- 
ents. ' ' 

The amendment evidently refers to certain natural 
landmarks that had in colonial times been recognized 
as indicating the limits of the political divisions which 
had come to be included in the two Republics. 

That the words "naturally existing" were under- 
stood to refer to natural limits is shown by the report 
of Senor Restrepo, Secretary for Foreign Affairs, in 
his report to the Colombian Congress, March 21, 1827, 
in which he said : 

"The Ratifications of the Treaty of Union, 
League, and Confederation, between Colombia 
and Central America had been already ex- 
changed, our Minister entrusted with this Nego- 
tiation having verified the same. But that Gov- 
ernment having altered, in the Act of Ratifica- 
tion, the meaning of the 5th Article, which treats 
of the settlement of the limits, by describing them 
as the natural limits ; as well as the 17th Article, 
which elected the American Assembly as the 



50 MEMORANDUM 

Judge, Arbitrator and Conciliator, of the Dis- 
putes and. differences between the Confederate 
States, which general stipulation was restricted 
by the Eepublick of Central America; these al- 
terations will prevent the exact observance of 
the Treaty. I shall present to Congress a Copy 
of the said Ratification, for its consideration.'"^^ 

The Congress permitted the ratifications to stand. 
As appears by numerous treaty stipulations heretofore 
quoted, the countries of Spanish-America deemed it 
to be important, not only for reasons of future 
convenience but also because of the uncertainties that 
prevailed as to their territorial rights, to adopt as far 
as possible natural boundary lines. That this thought 
existed in the mind of Colombia herself in 1826 ap- 
pears by the report of Senor Revenga, Secretary of 
State for Foreign Affairs, presented to the national 
Congress on the 2nd of January in that year. Re- 
ferring in that report to the subject of boundaries, and 
to the instructions which had been given in respect of 
Peru to seek "the most convenient, clear and natural 
frontiers," he said: 

''The sam.e object has been kept in view in 
regard to the settling of our boundaries with 
the Central Republic, and the same will be at- 
tended to in defining them on the East and South- 
east of Colombia. Being in possession of such 
an extent of territory that many generations 
must pass away before its population can be- 
come redundant, it appeared prudent to make 
it a principal consideration to provide against 
cases of future dispute.""" 



>'66 



" 14 Br. & For. State Papers, 1139. 
"'13 Br. & For. State Papers, lOlO-lOll. 



UTI POSSIDETIS 51 

By the treaty between Colombia and Peru, signed 
Sept. 22, 1829,*^' the parties agreed even to ''cede" to 
each other such small portions of territory as might 
be "necessary to fix the boundary line in a more nat- 
ural and precise manner." 

It is obvious, from whatever point of view we ap- 
proach the subject, that the Republic of Colombia and 
the Republic of the Centre of America, in entering into 
the treaty of 1825, intended nothing more than the de- 
marcation of their common frontier on grounds of 
right and of convenience such as have usually been in- 
voked by governments everywhere under similar con- 
ditions. 

New York, August, 1911. 

" Supra, p. 23. 



245 91 



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